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CIVIL APPEAL NO. 176 OF 2015 LAXMIDEVAMMA & ORS. .. Appellants Versus RANGANATH & ORS. .. Respondents

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 176 OF 2015
LAXMIDEVAMMA & ORS. .. Appellants

Versus

RANGANATH & ORS. .. Respondents

J U D G M E N T
R. BANUMATHI, J.

This appeal arises out of the judgment dated 27.9.2012 passed
by the High Court of Karnataka in R.S.A. No.297/2007, wherein the High
Court allowed the appeal in part, modifying the concurrent judgment and
decree passed by the courts below and holding that the appellants-
plaintiffs are entitled to compensation for the space earmarked for road as
and when the competent authority acquires the same.
2. Appellants-plaintiffs are the owners of the revenue land
bearing Survey No.1/1 of Chikmagalur village which was converted for non-
agricultural purpose under the order dated 2.4.1987 of the Deputy
Commissioner, Chikmagalur. Layout was formed from the above said land and
the site Nos.12 and 13 and portions of site Nos.11 and 14 were sold to
the first defendant by the appellants-plaintiffs by executing two sale
deeds dated 11.7.1988 and 3.1.1992. To the south of the property sold to
the respondents-defendants, ‘A’ schedule property as shown in the suit was
earmarked for the purpose of road. However, the City Development
Authority did not approve the same and hence no road was formed. Case of
the appellants-plaintiffs is that since no road was formed, they continued
to be the owners of the ‘A’ schedule property and they are the absolute
owners of the same.
3. In the year 1992, first respondent-defendant sold the property
purchased from the appellants-plaintiffs to second and third defendants who
constructed a house on the same alongwith a compound wall. Grievance of
the appellants-plaintiffs is that towards the northern side of ‘A’ schedule
property, the respondents encroached upon 80′ x 21/2 which is described as
‘B’ schedule property in the suit, despite protest from the appellants-
plaintiffs. Inspite of repeated demands, the respondents have not handed
over vacant possession of the encroached property. Therefore, appellants-
plaintiffs filed a suit for declaration that they are the absolute owners
of ‘A’ schedule property and for possession of the ‘B’ schedule property
in the court of Addl. Civil Judge (Jr. Divn.), Chikmagalur.
4. Respondents-defendants filed written statement admitting that
layout was formed out of the above Survey No. 1/1 of Chikmagalur village
and that first appellant has sold site Nos. 12 and 13 and portions of site
Nos.14 and 11 by two sale deeds dated 11.7.1988 and 3.1.1992 (Ex. D 16 Ex.
D17). While selling the above sites, the first plaintiff has reserved ‘A’
schedule property for the purpose of road on the southern side of
respondents’ property. Pursuant to the request of the municipality, the
adjacent property of ‘A’ schedule property was acquired by the authorities
for the purpose of road. The defendant No.1 has constructed houses facing
towards southern side of the road and the municipality has constructed a
footover bridge in between the channel and ‘A’ schedule property.
According to the respondents-defendants, ‘A’ schedule property is very much
necessary for the purpose of road. The respondents contend that having
sold the sites to the general public and also to the defendants earmarking
the space as road, the plaintiffs are not justified in seeking a
declaration of their title over ‘A’ schedule property. According to the
respondents-defendants they have encroached 21/2′ measuring in width on the
northern side of his house property and not on the southern side, and the
appellants have filed a suit with intention to shift the encroached area
towards south. According to the respondents-defendants if the plaintiffs’
title over ‘A’ schedule property is declared, the defendants and the
general public who have purchased the house/sites from the plaintiffs will
be put to inconvenience and hence they prayed for dismissal of the suit.

5. Upon consideration of oral and documentary evidence, the trial
court decreed the suit holding that the plaintiffs are the absolute owners
of ‘A’ schedule property and entitled to possession of ‘B’ schedule
property to an extent of 2′ x 781/4′ i.e. 2 feet north-south 781/4 feet
east-west and defendants 2 and 3 were directed to deliver vacant possession
of the said land to the plaintiffs. Being aggrieved, the defendants filed
appeal before the first appellate court-Fast Track Court, Chikmagalur. The
first appellate court confirmed the judgment and decree of the trial court
and dismissed the appeal vide judgment dated 13.10.2006. The unsuccessful
defendants preferred second appeal before the High Court, which by the
impugned judgment dated 27.9.2012 allowed the second appeal in part and
modified the judgment and decree passed by the courts below holding that
the plaintiffs are entitled for compensation for the space which was
earmarked for road if the same was acquired by the competent authority.
High Court held that the plaintiffs are not entitled for a declaration that
they are the absolute owners of the suit ‘A’ schedule property and
consequently their claim for injunction was also not granted.
6. Learned counsel for the appellants contended that the courts
below have recorded concurrent findings that ‘A’ schedule property was
earmarked for road and that no road was formed and the plaintiffs have
proved their ownership to ‘A’ schedule property and that the defendants
have failed to prove that it is a road having the nearest approach. It
was submitted that when the courts below have recorded concurrent findings,
in exercise of its jurisdiction under Section 100 C.P.C., the High Court
erred in re-appreciating the evidence and in interfering with the findings.
It was further contended that the High Court erred in holding that there
is a delay in instituting the suit for relief for mandatory injunction as
both the courts below have rightly held that the suit is within limitation
and that the defendants have encroached upon the plaintiffs’ property.
7. Per contra, learned counsel appearing for the respondents-
defendants contended that the plaintiffs failed to produce any documents of
title for declaration of their title over ‘A’ schedule property and
that the defendants have encroached upon the ‘B’ schedule property. It
was further contended that as the plaintiffs themselves have stated that
the space was left for proposed road which indicates that the plaintiffs
did not have full fledged valid right over ‘A’ schedule property, the High
Court rightly set aside the judgments of the courts below.
8. We have carefully considered the rival contentions and perused
the judgments of the courts below as well as the High Court and the
materials on record.
9. Facts are not in dispute. Plaintiffs owned 1.00 acre of land
in Survey No.1/1 at Chikmagalur village which was converted for non-
agricultural purpose and layout was formed with fourteen sites thereon.
Ex P.7 is the copy of the order issued by the Deputy Commissioner granting
permission to the plaintiff No.1 for converting the agricultural land into
non-agricultural purpose. As per condition No.9 therein, except two guntas
of land taken over by the municipal authorities for the purpose of road at
the rate of two guntas per acre, permission was granted in respect of
remaining 38 guntas. Plaintiffs sold site Nos. 12 and 13 and portions of
site Nos. 11 and 14 to defendant no.1 under two sale deeds. In the first
sale deed dated 11.7.1988 an extent of 80′ x 50′ was sold and in the second
sale deed dated 3.1.1992, 22′ x 76′ was sold. Subsequently, first
defendant sold the property purchased by him from the plaintiffs to the
second and third defendants under Exs. D16 and D17 dated 11.7.1988 and
3.1.1992 respectively. In its judgment in paragraphs 11 to 13, the first
appellate court elaborately discussed the above sale deeds and pointed out
discrepancies in the boundaries of the property between the earlier sale
deeds and Ex. D16 sale deed in favour of defendant No. 2.
10. Plaintiffs have sought for declaration of ‘A’ schedule property
earmarked for road. ‘B’ schedule property is the portion of ‘A’ schedule
property measuring 21/2′ x 80′ which according to the plaintiffs was
encroached by the defendants. Upon consideration of oral and documentary
evidence, trial court as well as the first appellate court have recorded
concurrent findings of fact to the effect that the plaintiffs have
earmarked the land on the southern side intended for road and no road was
formed and land of one Advocate V.B.K. Dias was acquired and road was
formed therein. From the evidence of DW-1-President and Councilor of the
Municipality and DW-4, Assistant Commissioner, courts below recorded
findings that the ‘A’ schedule property is still in the name of the
plaintiffs and that there was no acquisition and payment of compensation
made to the first plaintiff in respect of the disputed property.
11. Ex. P4 – endorsement issued by the City Municipality to the
plaintiff No.1, which clearly shows about the mutation of khata of the
schedule ‘A’ property in favour of plaintiff No. 1. Ex. P2 and Ex. P 6 are
the tax assessment register extracts which amply prove that the ‘A’
schedule property stands in the name of plaintiffs and that they are the
owners of the disputed property. As against the resolution passed by the
city Municipality by cancelling the khata of schedule ‘A’ property in
favour of the plaintiff No.1, he has preferred revision. In the revision
petition filed by the plaintiff No.1 against the resolution passed by the
City Municipality for cancelling the khata of schedule ‘A’ property, the
said resolution was set aside and Ex. P8 is the said order. Based upon the
above documentary evidence and other evidence, first appellate court has
recorded concurrent findings that the plaintiffs are successful in showing
that they are the owners of ‘A’ schedule property and that the same is
coupled with oral evidence which substantiates the documentary evidence.
12. Based upon oral and documentary evidences, the courts below
have recorded concurrent findings that the plaintiffs are the owners of ‘A’
schedule property. While so, the High Court ignoring the material
evidence, erred in interfering with the concurrent findings of fact. While
holding that ‘A’ schedule property has been left for the road and that
plaintiffs cannot seek declaration of title, in our considered view, the
High Court brushed aside the oral and documentary evidence based on which
the courts below recorded concurrent findings of fact that ‘A’ schedule
property though earmarked for road, the same was not formed and that
plaintiffs established their right in the ‘A’ schedule property.
13. Insofar as the encroachment of ‘B’ schedule property, the
sketch prepared by the Assistant Director of Land Records (ADLR), was
produced and the same was marked in the trial court as Ex. P5. In
the first appellate court, the interlocutory application filed by the
plaintiffs, one Sri Basavaraj, Assistant Engineer, Public Works Department
was appointed as the Court Commissioner, who had inspected the spot and
filed the report and also the sketch. Based on the report of the Court
Commissioner and Ex. P5 and other evidence, the first appellate court has
recorded the findings of fact that defendants have encroached upon suit ‘A’
schedule property and the same read as under:-

“…No doubt shall arise to hold that, it is proved that, defendant Nos. 2
and 3 have encroached upon 781/4′ x 2′ in schedule ‘A’ property, which
is also corroborated by Ex-P5. It is also the first rough sketch submitted
by the Court Commissioner. But though the extent of the encroachment area
reported therein does not absolutely tally with the extent of ‘B’ schedule
property, encroachment of 781/4′ x 2′ by defendant Nos. 2 and 3 out of it
is proved….”
Based on the report of the Court Commissioner and Ex. P5 and on the above
findings the first appellate court ordered delivery of possession of ‘B’
schedule property. In our view, the said findings of fact do not suffer
from any perversity and the same ought not to have been interfered by the
High Court.
14. Before the courts below, defendants have taken a plea that
they had encroached a width of 21/2 feet in the road only on the northern
side as a result of which width of road towards northern side is reduced
from 30 feet to 271/2 feet. Both the courts below negatived the said plea
holding that there are no traces of encroachment of 80′ x 3′ by the
defendants on the northern side.
15. Based on oral and documentary evidence, both the courts below
have recorded concurrent findings of fact that plaintiffs have established
their right in ‘A’ schedule property. In the light of concurrent findings
of fact, no substantial questions of law arose in the High Court and there
was no substantial ground for re-appreciation of evidence. While so, the
High Court proceeded to observe that the first plaintiff has earmarked the
‘A’ schedule property for road and that she could not have full fledged
right and on that premise proceeded to hold that declaration to plaintiffs’
right cannot be granted. In exercise of jurisdiction under Section 100
C.P.C., concurrent findings of fact cannot be upset by the High Court
unless the findings so recorded are shown to be perverse. In our
considered view, the High Court did not keep in view that the concurrent
findings recorded by the courts below, are based on oral and documentary
evidence and the judgment of the High Court cannot be sustained.
16. In the result, the appeal is allowed, impugned judgment in
R.S.A. No. 297/2007 dated 27.9.2012 passed by the High Court of Karnataka
is set aside and the judgment passed by the Addl. Civil Judge (Jr. Divn.),
Chikmagalur as confirmed by the lower appellate court is restored. Parties
are left to bear their own costs.
…………………………J.
(V. Gopala Gowda)
…………………………J.
(R. Banumathi)

New Delhi;
January 20, 2015
ITEM NO.1A-For Judgment COURT NO.12 SECTION IVA

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Civil Appeal No(s). 176/2015

LAXMIDEVAMMA & ORS. Appellant(s)

VERSUS

RANGANATH & ORS. Respondent(s)

Date : 20/01/2015 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
Ms. Anjana Chandrashekar,Adv.

For Respondent(s)
Mr. S. N. Bhat,Adv.
Hon’ble Mrs. Justice R. Banumathi pronounced the judgment of
the Bench comprising Hon’ble Mr. Justice V. Gopala Gowda and Hon’ble Mrs.
Justice R. Banumathi.
The appeal is allowed in terms of the Signed Reportable
Judgment.

(VINOD KR. JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)

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